The Impact of ‘Right to Work’ Laws on Workers, Their Families, and the Economy as a Whole

By Nathan Gilbert

“Those who would destroy or further limit the right of organized labor- those who would cripple collective bargaining or prevent organization of the unorganized- do a disservice to the cause of democracy”[1] –John F. Kennedy

Introduction

Over the past few years, those who seek to restrict and roll-back workers’ rights have been hard at work. From Gov. Scott Walker’s push in Wisconsin to restrict collective bargaining rights,[2] to politicians interfering with a union election in Tennessee[3], the war on workers and their hard-fought gains in the workplace is being waged nationwide. One of the major fronts in this struggle is the promulgation of so-called ‘Right to Work” laws.[4] This essay will examine Right to Work laws and the adverse impact they ultimately have on those who they claim to protect.

Right to Work Explained

To adequately address this issue, we must first define what a Right to Work law is. In short, Right to Work laws allow those represented by unions and covered by collective bargaining agreements negotiated and administered by unions to opt out of paying for such representation.[5] In a non-Right to Work state, or union security state, if an individual works in a location that is represented by a union, the employee has a choice: he can either choose to join the union and pay union dues, or he can choose not to join the union and pay a fair share fee to compensate the union for the costs of representing him.[6]

Critics call this “forced unionism”[7], but this moniker is simply not true. Since the passage of the Taft Hartley Act of 1947, no person can be forced to join a union as a condition of employment.[8] So, even in a state without Right to Work, no one can be forced to join a union against their will. What is true, however, is that in union security states, employees who choose not to join the union can be required to pay a fee to the union to reimburse it for the costs of representing the worker.[9] The NLRB mandates that this fee cover “only that share of dues used directly for representation, such as collective bargaining and contract administration.”[10] This is because, if the employee works in a union environment, the union is bound to represent and negotiate on behalf of all workers in the bargaining unit whether they choose to join the union or not.[11]

The difference in a Right to Work state is that an employee cannot be required to pay union dues, nor pay such a fee to the union for the costs of representation, nor can he be required to join the union that represents him.[12] Essentially, the worker can get a “free ride”, by not paying union dues nor a fair share fee while still retaining all of the wages, benefits, and representational rights that the union has bargained for. Again, the worker still enjoys all of the benefits and protections of the union contract even though he is not reimbursing the union at all for the services rendered.[13]

To help explain this concept, it may be beneficial to use an example. Let’s consider John the welder. John chooses to go to work for ABC Corp. in Colorado, a union security state. ABC’s employees are represented by Union XYZ. When John chooses to go to work for ABC, he will be covered by the union contract negotiated and administered by XYZ. This means he will receive all of the protections that come from union representation. Since John is working in a union security state, he will be required to either join the union or pay a fair share fee to the union for their services in representing him.[14] Now, let’s change the scenario and place John in a Right to Work state, say Mississippi. John still works for ABC and is still represented by Union XYZ. The difference now is that, because of the Right to Work law, John is not required to pay anything for the representation and benefits he receives under the union contract.[15] He is basically allowed to receive all of the union benefits and representation without footing any of the bill. This shifts the costs of John’s representation to his fellow co-workers who do choose to join the union. Essentially, John’s co-workers are paying for his ‘right’ to free load. It naturally follows that if all workers can get union benefits and protections without paying for them, then it is likely that very few employees will ever join the union and eventually the union will not be financially able to continue representing the employees.

This would be akin to a shopper going into a warehouse store such as Sam’s Club and demanding the same lower prices enjoyed by members without having to pay for those benefits through membership fees. I can imagine that Sam’s Club would not support such a “right-to-shop” scheme, but this is no different than Right to Work. It seems that union security states operate on the simple principle that if one enjoys the benefits on another’s hard work, he/she should have to contribute something to compensate for those efforts. In a union security state, if a worker does not want to join the union or pay his fair share, he is still free to find work in an environment without union representation. Unions are not charities and cannot survive without dues-paying members. Thus, it is natural that Right to Work laws would lead to the decreasing power of unions and a parallel decline in the standard of living for workers. This is exactly what Right to Work does.

Consequences of Right to Work

One of the main consequences of attacking workers and their unions through Right to Work laws is the lower wages and benefits enjoyed by such workers when compared to those represented by unions:

“On average workers in states with “Right to Work” earn $5,538 a year less than workers in states without these laws.”[16]

“Overall union members earn 28 percent ($198) more per week than nonunion workers.”[17]

“78 percent of private sector union workers have access to medical insurance through their jobs, compared with 51 percent of nonunion workers.”[18]

“…77 percent of private sector union workers have access to a guaranteed (defined benefit) retirement plan through their jobs, compared with just 20 percent of nonunion workers”[20]

Perhaps most startlingly, “[a]ccording to data from the Bureau of Labor Statistics, the rate of workplace deaths is 52.9% higher in states with Right-to-Work laws.”[21]

One of the main reasons that many on the Right often cite in of support Right to Work laws is that they believe that these laws will create jobs and support industrial development in their states.[22] This also, does not seem to be the case. A study from the Economic Policy Institute examined the state of Oklahoma before and after it passed Right to Work legislation.[23] The study concluded that “Right-to-work laws have not succeeded in boosting employment growth in the states that have adopted them.”[24] Additionally, when looking at Oklahoma, one of the most recent states to pass Right to Work, the study found that before the law, manufacturing jobs were on the increase, but after Right to Work, “manufacturing employment and relocations into the state reversed their climb and began to fall, precisely the opposite of what right-to-work advocates promised.”[25] Thus, the job growth panacea promised by proponents of Right to Work does not seem to conflate with reality.

But, for argument’s sake, let’s assume for a moment that Right to Work laws did increase job growth in states that adopt it. Would that be a good thing? The businesses that would be moving to Right to Work states would likely move there to escape the wages and benefits bargained for by unions in their former states. This means that these companies are likely relocating to Right to Work states to take advantage of lower wages, fewer benefits, and less workers’ rights and safety regulations. Is this the kind of economy that we want to encourage? Right to Work contributes to a race to the bottom where the state that offers the lowest wages and fewest benefits “wins” new business. But it is surely not the workers nor their families who “win”[26], nor is it even the states who attract these news jobs.[27] It seems that the only winners of the race to the bottom are big business and the campaign accounts of their political allies. This is evidenced by the millions of dollars big businesses and their affiliated lobbying organizations spend supporting Right to Work and other anti-worker legislation.[28]

Conclusion

In conclusion, Right to Work is just another battle in the current War on Workers and their families. Right to Work allows employees to enjoy all the benefits of union representation while paying none of the costs.[29] In addition, Right to Work contributes to lower wages[30] and fewer benefits,[31] all the while failing to deliver on its promise of economic growth.[32] Right to Work may be right for big business and politicians who seek to rescind workers’ rights and attack the unions that fought for and continue to defend them, but it is wrong for America.

[6]See id. (“The NLRA allows employers and unions to enter into union security agreements which require all employees in a bargaining unit to… pay[] union dues and fees… Even under a security agreement, employees who object to full union membership may… pay only that share of dues used directly for representation…”)

It is an oft-stated maxim that the road to hell is paved with good intentions. At the intersection of social and economic policy, this warning has perhaps most often been applied to the minimum wage, particularly by economists—on both sides of the political spectrum. While the level at which a minimum wage becomes undesirable is a point of considerable debate, there is broad agreement that a minimum wage, when high enough, excludes from the labor market those whose productivity is worth less than the minimum that an employer is required by law to pay.[1] The resulting unemployment is highest among those with the least opportunity to develop essential skills early in life, meaning that minorities, who may have decreased access to quality education, are likely to be among the most adversely affected.[2] Today, minimum wage supporters are almost certainly motivated by good intentions despite the potentially negative effects of such a policy, but there exists a disturbing history of bad intentions in the imposition of minimum wage laws in the United States.[3]

While the use of a minimum wage to exclude blacks from employment in apartheid-era South Africa[4] would not come as a surprise to anyone, most Americanswould be shocked to learn that the same thing has happened in the United States in the form of the Davis-Bacon Act.[5] This law came about as a result of union pressure to establish a minimum wage for federally-funded construction projects so that union workers could not be undercut by those willing to be paid less to perform the same work.[6] Constituting a large proportion of those willing to be paid less were blacks migrating north to look for jobs and to escape the burdens of the Jim Crow-era south.[7] Indeed, blacks constituted a disproportionately large percentage of the unskilled construction work force at the time of the bill’s passage in 1931.[8] Eliminating blacks from employment on federally-funded construction projects was not the unintendedconsequence of race-neutral bill, it was a primary motive for passage of the Act. Congressional testimony surrounding the Act is rife with references to maintaining “proper racial representation” and ending the use of “migratory labor.”[9] More specifically, one representative lamented that a “contractor from Alabama…has cheap colored labor that he transports…and it is labor of a sort that is in competition with white labor throughout the country.”[10] Another stated that “[y]ou will not think that a southern man is more than human if he smiles over the fact of your reaction to that real problem you are confronted with in any community with a superabundance or large aggregation of negro labor.”[11]

The Act was not merely intended to be discriminatory towards black employment. There is evidence that it actually accomplished that goal with great success. By ensuring that the local union wage rate was used on the majority of federally-funded construction project, blacks, who were largely excluded from union membership, were effectively shut out of the labor market for these projects.[12] One study found that Davis-Bacon wage determinations were fifteen to forty percent higher than the prevailing market rate.[13] Because all workers, skilled and unskilled, were subject to the same minimum wage rates, there was no benefit to hiring unskilled labor. Blacks were primarily relegated to unskilled jobs and largely excluded from craft unions, so exceedingly few were hired—there was no reason to hire unskilled laborers if skilled laborers could be obtained in their stead and for the same rate.[14] Accordingly, the period between 1930 and 1950, which was marked by extensive federal works projects, was also subject to a “rapid increase in the black/white unemployment ratio.”[15]

It would seem to the observer with even a cursory knowledge of Constitutional jurisprudence that the Davis-Bacon Act is potentially invalid under the test set out in Village of Arlington Heights v. Metropolitan Housing Development Corporation.[16] In that case, the Supreme Court found that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”[17] The Court noted further that discriminatory intent need not be the sole motivating factor in passing the challenged legislation for it to be Constitutionally invalid.[18] Considering that “legislative or administrative history may be highly relevant” to showing discriminatory intent, “especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports,”[19] the Davis-Bacon Act would seem to be highly susceptible to being overturned in federal court. The single time the Act has been challenged, however, the court granted the government’s motion for summary judgment, finding the Act constitutional.[20]

None of this is to suggest that the Davis-Bacon Act should be repealed today. Even though a piece of legislation was passed with discriminatory intent, it may still be non-discriminatory in practice, especially in light of 80 years of subsequent legislation. Indeed, there is conflicting evidence as to whether the effects of the Davis-Bacon Act were ever discriminatory to begin with, much less today.[21] But at the very least, economic theory tells us that minimum wage laws can be used to discriminate against disfavored groups, and the passage of the Act shows that even in America, legislators have actually imposed minimum wages for the purpose of discriminating against those groups. Given the overwhelming popularity of minimum wage laws today, the history of the Davis-Bacon Act serves as a useful reminder that even something so seemingly harmless, so apparently well-intentioned as a minimum wage can be manipulated into something discriminatory and undesirable.

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In his State of the Union address on Tuesday, President Obama called on Congress to raise the minimum wage to $10.10 from its current rate of $7.25.[1] However, the President’s speech failed to call for legislation which would also adjust the minimum wage to account for the effects of inflation.[2] This measure, arguably, would make more of a difference in the living standards of those who work for minimum wage.

To demonstrate the effect of inflation on the minimum wage, one need only consider the answer to the following question: What is the highest that the U.S. minimum wage has ever been? If your answer is the current statutory minimum wage of $7.25 you would be both right and wrong. In nominal[3] terms, the current statutory rate is the highest it has ever been.[4] In fact, since the first minimum wage of $0.25 was set in 1938 it has been raised on twenty-two occasions[5], resulting in a twenty-nine fold increase.[6] If the analysis were to stop here, it might seem that the minimum wage had steadily and significantly increased.

However, the analysis cannot stop here, but must take account of the effect of changing prices of consumer goods and services during the life of the minimum wage. The reason this matters is that if the prices of the goods and services that consumers buy increase faster than their wages, their buying power is diminished. By contrast, if wages increase faster than the costs of goods and services the buying power their buying power is increased.

When the minimum wage is adjusted from nominal to real terms, the narrative is considerably different that it appears on its face.[7] Adjusted for inflation, the federal minimum wage started at $4.08 in 1938 and peaked in the 1968 at $10.77.[8] Viewed in real terms, the minimum wage has, from its inception to its current level, actually failed to even double (compared to a twenty-nine fold increase when considered in nominal terms). Further, whether the current proposal to set the minimum wage at $10.10 would really be a raise, as President Obama implied in his State of the Union address, for minimum wage workers is dubious at best. President Obama said that Congress should “[g]ive America a raise.”[9] However, how many workers would really consider it to be a raise if their wages had fallen over three dollars from their peak and were now going to be raised to a level still below their peak? This is exactly the situation that minimum wage workers find themselves in when you consider wages in real terms. The counter argument is that the comparison should be between the real minimum wage in recent years and the proposed minimum wage. It is true that if this is the measure, then $10.10 per hour would be a raise in both nominal and real terms.

However, unless this amount is indexed to inflation minimum wage workers are likely to see the real value of their wage decline as the economy begins to recover and inflation becomes more of a concern. Whether the minimum wage is raised to $10.10 or not, policy makers need to consider tying minimum wage to inflation so that future minimum wage workers are at least as well off in real terms as current minimum wage workers.

[3] Definition of nominal: “An unadjusted rate, value or change in value. This type of measure often reflects the current situation, such as the current price of a car, and doesn’t make adjustments to reflect factors such as seasonality or inflation, which provide a more accurate measure in real terms.” Nominal, Investopedia, http://www.investopedia.com/terms/n/nominal.asp (last visited Feb. 1, 2014).

[7] The analysis that follows is based on data comparing the minimum wage in real and nominal terms in each year that it has been adjusted. Though, the frequency with which the minimum wage has been changed provides a relatively complete picture, there may be some discrepancies when compared to analyses that account for the effect of inflation in every year over the course of the minimum wage’s life.

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Blurred Lines: Whether an Unpaid Intern Should Fall Under Title VII’s “Employee” Definition

By: Lacy Triplett

Internships provide valuable experience for students and recent graduates, and they are pretty much required in order to obtain a job in most fields. However, interns are not afforded the same civil rights protections that paid employees receive.[1] Although there are some regulations regarding interns in employment law, they are not strictly enforced, and most interns do not voice concerns about the violations because the intent of an internship is to obtain future employment.[2] While compensation for internships would be ideal, the main purpose of interning is to gain valuable workplace experience that cannot be taught in educational or vocational programs. The lines are blurred when unpaid interns have their rights violated and want to bring legal action but are statutorily barred because they are not legally considered employees. Therefore, their claims of harassment and discrimination under Title VII of the Civil Rights Act of 1964 (Title VII)[3] fall by the wayside because interns realize they will not prevail and their employers will not be punished. Title VII’s definition of an “employee” states that “the term ‘employee’ means an individual employed by an employer….”[4] While that definition seems rather open-ended, federal courts have regularly held that compensation is the threshold for concluding employment status.[5] Thus, unpaid interns are left in a vulnerable position without recourse for discrimination or harassment, which would be protected by Title VII if they were paid employees.[6]

There has been a recent resurgence in the debate as to whether an unpaid intern should be considered a Title VII employee due in large part to a recent case out of New York. In that case, an unpaid intern with a Chinese media outlet filed a lawsuit alleging sexual harassment against her supervisor, which created a hostile work environment.[7] Lihuan Wang interned for Phoenix Satellite Television while completing a Master’s degree in journalism from Syracuse University.[8] Wang performed duties typical of a news intern; she alleged that in order to get hired for a permanent position with the company post-graduation, she had to get the approval of her supervisor, Zhengzhu Liu.[9] The issues alleged in Wang’s suit began when Liu traveled from his office in the Washington D.C. bureau to the New York bureau where Wang was interning.[10] After having lunch with Liu and the other employees at the New York bureau, Liu asked Wang to stay behind so they could discuss her job performance and job possibilities.[11] After that discussion, Liu suggested that they go to his hotel so he could put his belongings in his room, and while on the way Liu began making crude and unconformable sexual remarks toward Wang.[12] At the hotel, “Liu asked Ms. Wang to name her most beautiful feature and told her that [her] eyes [were] so beautiful,” and then suggested they go to his room.[13] Once inside his hotel room, he “took off his shirt jacket and undid his tie;” then, Liu “suddenly exclaimed, ‘Why are you so beautiful?’ and threw his arms around [Wang].”[14] He then held Wang “tightly for roughly five seconds and tried to kiss [Wang] by force, but [Wang] turned her face away so [Liu’s] mouth landed on her cheek and neck.”[15] Wang also asserted that Liu “squeezed [her] buttocks with his left hand.”[16] Wang stated that she only agreed to go to his room because he was her supervisor and she felt obligated, and she left the hotel room after asking Liu to stop.[17] Wang asserted that after the incident at the hotel, Liu’s interest in permanently hiring her diminished.[18] Wang further asserted that when she contacted him after the completion of the internship, Liu invited her to Atlantic City, New Jersey for a weekend “to discuss her job opportunities.”[19] Wang declined Liu’s invitation fearing that he would make sexual advances towards her again.[20]

Judge Castel held that Wang was unable to proceed on her claim because the protections afforded to employees under Title VII and the New York City Human Rights Law [21] (NYCHRL) do not extend to unpaid interns.[22] Specifically the Court stated that compensation is a threshold issue when determining whether an employment relationship is present under Title VII and the NYCHRL.[23] “The plain terms of § 8-107(1)(a)[24] make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person ‘in the conditions or privileges of employment’ if no employment relationship exists.”[25] Because Wang was an unpaid intern and received no remuneration, she was unable to prevail on her hostile work environment claim under the NYCHRL. The fact that she did not receive payment for her work at Phoenix barred her sexual harassment claim under both Title VII and the state law provisions of the NYCHRL.[26]

Wang is not the first case to hold that unpaid interns are not protected from discrimination and harassment claims under Title VII,[27] and the debate surrounding the issue does not seem to be dying down any time soon. However, just like with any story, there are two sides to this debate. One legal commentator says that the decision in Wang is not a controversial one, and it is akin to the traditional interpretation of federal, state, and local discrimination laws, which do not afford protection to unpaid interns.[28] He suggested that employers prevent claims such as the ones alleged by Wang by auditing internships to make sure they comply with the Department of Labor’s guidelines, instituting paid internships, and educating employers on anti-discrimination policies.[29]

There has been some progress made in terms of protecting unpaid interns from harassment and discrimination at the hands of their employers. In Oregon, the legislature passed a bill that provides some of the existing employment discrimination protections to interns who are working for educational purposes.[30] If it is signed into law, it will protect unpaid interns against discrimination based on race, color, religion, sex, sexual orientation, national origin, marital status, disability, and uniformed service, as well as other things.[31] The reasoning behind the Oregon bill was to serve as a “preservation of the public peace, health and safety.”[32] Oregon is not alone in this movement. New York State Senator Liz Krueger plans to introduce legislation that will “close the loophole which basically allows unpaid interns to be sexually harassed because they aren’t being paid.”[33] She stated that her bill will “define internships, explicitly ban workplace sexual harassment of interns, and apply general workplace civil rights protections to interns.”[34]

Given the prevalence and near necessity of completing an internship, it will be interesting to see how the Oregon and New York legislatures address these bills. Issues still remain on the federal level and for interns who are not working in the two states will proposed laws to remedy the situation. What will become of Title VII and unpaid interns? Will compensation remain the determinative factor in establishing an employment relationship? Will any putative measures arise to prevent employers from continuing to discriminate and harass interns? If the Oregon legislature and Senator Krueger get their way, it seems that unpaid interns will be slowly clearing up the blurred lines of the intern and employee relationship allowing interns, like Wang, to address claims against their employers.

[24] Section 8-107(1)(a) of the NYCHRL states, “For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.”

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When Johnny Manziel allegedly signed autographs for money, he did much more than make a quick dollar or two if the allegations were actually true. He did something far more profound than he ever could have realized: he popularized the modern movement against the hypocrisy of the National Collegiate Athletic Association (NCAA).[1] Because of Johnny Manziel’s high public profile, the advent of social media, and the recent drastic missteps of the NCAA in their enforcement divisions, namely overreaching against the University of Miami and going well outside their bylaws for Penn State University[2], the furor has reached fever pitch against the organization that has “guided” amateur athletics for over 100 years. So what does Johnny Manziel and the NCAA have to do with a blog on civil rights and civil liberties? While even the vast majority of the people who followed the autograph “scandal” closely likely do not know why Manziel’s inability to profit from his own signature is important, the right implicated is the right to publicity, and namely the right to profit under that publicity which is the central issue in a class action lawsuit of former players against the NCAA and EA Sports.

The facts of the story involving Johnny Manziel and his alleged autographing pictures for pay are simple. Several media outlets began reporting over the summer that Johnny Manziel had accepted five-figure payments for his autograph on several photographs, and that his friend had brokered the arrangement with several different autograph dealers.[3] While the autograph dealers would speak to the media outlets, they refused to speak to the NCAA, which essentially rendered their investigation impotent. The motivations of the autograph dealers for disclosing the alleged NCAA violations to the media, but not to the NCAA is unclear. After a lengthy investigation (though certainly brief by NCAA standards), NCAA found Johnny Manziel guilty of a lesser violation (a plea deal of sorts) and deemed him ineligible to play in the first half of Texas A&M’s season opening game against Rice.[4] At contention with the well-known right of publicity is the fact that the alleged NCAA violation occurred because Johnny Manziel was supposed to have known that by signing so many autographs, even without receiving compensation, someone could have profited off of his image.[5] While the public’s reaction was largely that the NCAA’s rules were yet again proven to be ridiculous, the public outrage against the NCAA and its rules against a player profiting off of his own image or autograph was unmistakable.[6]

The outrage began during the NCAA investigation when several media members, notably Jay Bilas, decided to go to the NCAA apparel store online and simply type in the name “Manziel” in the search function of the website which brought up a number two Texas A&M jersey.[7] He then repeated the search with the last names of several big NCAA college football stars including Jadeveon Clowney, Teddy Bridgewater, and AJ McCarron which brought up their respective jerseys as well. Upon completing his search, Bilas went to social media to post his findings, and the messages went viral.[8] While public outrage compelled the NCAA to remove quickly the search feature from the website, the hypocrisy of the NCAA had finally been exposed on social media given the popularity and polarizing nature of Johnny Manziel. Additionally, several reports came out that Texas A&M was selling tickets for several thousand dollars for the privilege of sitting at a table with Johnny Manziel at booster events.[9] Furthermore, Texas A&M, along with most other major universities, profit nicely from the jersey sales of their current star players (no names are allowed on the jerseys, but there is little doubt whose jersey is being purchased by the fans).[10] While the NCAA rules prevent the amateur athlete from profiting from his own likeness or image, apparently nothing in the rulebook prevents the NCAA or its member institutions from profiting immensely from their players’ images, either directly, by jersey and other apparel sales, or indirectly from the billions of dollars that flood into the athletic departments of major universities annually from ticket sales and television deals.[11]

Additionally, the NCAA is currently embroiled in a major lawsuit involving EA Sports’s college football videogame which features the likenesses of the college football players given that the vital statistics of those players, while not given names, but merely numbers, match up favorably with most of the college players who that number on the given year of release for the game.[12] While the NCAA has said that no players’ likenesses were used on the game, it ended its association with EA Sports[13] because of the pending lawsuit, and many major college conferences have refused to let their member schools license their logos for future college football games from EA Sports.

So why is all of this such a big deal? It is because of the well known right that celebrities have to their publicity, or in other words, the right of a person to make money off of his own image or likeness.[14] The NCAA’s rules and hypocrisy violate two major provisions of this rule: first, the rules prevent a player from earning publicity off of his own image, and two the rules apparently allow for someone else profit off of the amateur athlete’s image. While law review articles have written arguments that question the wisdom of this policy, the right of publicity is well entrenched in American societies with over twenty states having codified the provisions in statutes, and common law generally favoring the rights of publicity for public figures.[15] While the rights of publicity can be minimized if a story about a public figure is “newsworthy” such as ESPN making money off of story involving a football game in which Johnny Manziel had participated because of its newsworthy status, a company could not conceivably do as the NCAA and its institutions do, sell a Johnny Manziel jersey without paying him some kind of royalty for the right to use his name.[16] While the jersey may not have his name on it, a simple search of “Manziel” in the previous search engine on the NCAA’s apparel website would bring up his jersey (as discussed previously).[17]

The rights of publicity have been long entrenched in American society, with some sources dating the origins of the philosophy to the founding of this nation[18], and the NCAA should modernize its statue to allow players to profit from their success, especially given the impoverished status of many of the biggest stars in the NCAA, Manziel and his family’s wealth notwithstanding. The NCAA cannot enforce its rules consistently and effectively, despite the good faith efforts of its member institutions and their coaches. With so many wealthy boosters and agents tempting young college kids who in many cases were impoverished or suffered some kind of hardship such as being a Katrina refugee[19], or the coach who does the morally correct thing in buying a hungry (and insolvent) football player some tacos so that he can eat[20], the NCAA’s rules need to be updated for the modern world, and by embracing the age-old right to publicity for its athletes, the NCAA may be able to do the correct thing for its players, while being lauded for finally approaching an issue with common sense.